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Vyas v Vyas [1997] FJHC 247; Hbc0497d.95s (24 October 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 497 OF 1995

Between:

SUSHILA ANJANI VYAS
f/n Ram Channan Singh aka
SUSHILA LAYTON
Plaintiff

and

MUNI DEO VYAS
f/n Ram Jiawan Vyas and
KUSUM LATA MAHARAJ
f/n Shiu Dharshan Maharaj
Defendants

Mr. H. Nagin for Plaintiff
Mr. S. Chandra for Defendants

DECISION

This is the Plaintiff's summons filed on 11 March 1997 for an order that the Defendants' Statement of Defence be struck out and Summary Judgment be entered against them as prayed for in the Statement of Claim.

The learned counsel for the Plaintiff makes this application under Or 18 r 18 of the High Court Rules.

Mr. Nagin submits that the Statement of Defence does not disclose a reasonable defence and that the action is frivolous and vexatious and an abuse of the process of the Court.

In support of his argument Mr. Nagin refers to the Affidavit of Mahendra Lal (Senior Law Clerk at the office of Messrs. Sherani & Co.,) sworn 13 October 1995 which traced the history of the alleged fraudulent transfer of the land in question. The Plaintiff's Statement of Claim sets out how the action has arisen in this case and I need not repeat same here.

On 17 October 1995 the Plaintiff obtained an Order for interim injunction against the Defendants from selling, transferring encumbering etc the property in question i.e. 35 Gorrie Street, Suva and comprised in CT.5932 until the hearing and determination of this action or until further order. Subsequently on 7 December 1995 the Defendants filed Statement of Defence and Counterclaim (although before filing same the Plaintiff had filed summons on 21 November 1995 for Summary Judgment which the Plaintiff withdrew once Defence was filed).

By their Statement of Defence the Defendants have raised a number of triable issues e.g. that the Family Court of Australia was without jurisdiction to make the orders which it made and therefore they had no force and effect. Then in the Counterclaim there are allegations that the Plaintiff had unlawfully deprived the First Defendant of his right and title to numerous assets and chattels and "has in the process driven the first defendant to the brink of bankruptcy" giving brief particulars of same.

Consideration of the issue

The only issue before me is whether I should strike out the action under Or 18 r 18 bearing in mind the nature of the defence filed.

Mr. Nagin says that it is clear from the Affidavit filed that the first Defendant in collaboration with the second Defendant fraudulently transferred the property in question to another contrary to the Order for sale made in the Australian Court. He says that no reasonable defence has been disclosed, and that it is frivolous and vexatious and an abuse of the process of the Court.

Mr. S. Chandra on the other hand has raised a number of defences. He says that the Australian Order is invalid. It has not been registered under the Reciprocal Enforcement of Judgments Act Cap. 39 and that it cannot be enforced in Fiji. He says that the land has already been transferred and the second Defendant has an indefeasible Title. He says that the alleged fraud should be proved by parole evidence.

The law on the subject of striking out pleadings is set out in Or 18 r 19 of the SUPREME COURT PRACTICE 1979 Vol I. There it is stated that it must be remembered that "it is not the practice in the civil administration of our Courts to have a preliminary hearing as it is in crime" (per SELLERS, L.J. in WENLOCK v MOLONEY (1965) 1 WLR 1242). Here I have a case in which various defences have been raised; there are triable issues. I have allegation of fraud and jurisdictional problem. It is further stated in the White Book that it is only in plain and obvious cases that recourse should be had to the summary process under this Rule, per LINDLEY M R in HUBBUCK v WILKINSON [1898] UKLawRpKQB 176; (1899) 1 Q.B. 86 at p.91, also the summary procedure under this Rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable". It is further stated that the "Court must be satisfied that there is no reasonable cause of action ....., or that the proceedings are frivolous or vexatious; ... or that the defences raised are not arguable".

The power to strike out a pleading is a discretionary jurisdiction and this has "to be exercised having regard to the quality and all the circumstances relating to the offending plea". (CARL-ZEISS-STIFTUNG v RAYNER & KEELER LTD) (No. 3) (1970) (Ch. 506).

Mr. Nagin says that there is no reasonable cause of action or defence here. On this submission I have borne in mind the following extract from the SUPREME COURT PRACTICE (supra) under Or. 18/19/5 which is pertinent to the issue before me:

"There is some difficulty in affixing a precise meaning to" this term. "In point of law, ..... every cause of action is a reasonable one" (per Chitty, J., Rep. of Peru v. Peruvian Guano Co,. 35 Ch. D. p.495). A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A.). But the practice is clear. So long as the statement of claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v. Lawson, 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.)".

Conclusion

Bearing in mind the submissions of counsel and applying the principles of law applicable to an application of this nature, in the exercise of my discretion, I refuse the application to strike out the Statement of Defence filed herein with costs against the Plaintiff to be taxed if not agreed.

D. Pathik
Judge

At Suva
24 October 1997

HBC0497D.95S